When a Theoretical Commitment to Broad Physician-Aid-In-Dying Faces the Reality of Its Implementation

Brent Kious and Margaret Battin argue that since relief of intolerable suffering constitutes the dominant justification for physician-assisted-dying (PAD) laws, we should give access to patients who suffer intolerably from mental illness. As others, they reject ‘terminal illness’ as a legitimate access restriction. They recognize, though, that a key challenge is to determine “what degree of suffering is enough to justify death”. Yet they fail to see how the experience in the very few jurisdictions that rely on unbearable suffering as a key threshold for access reveals the dangers of not treating PAD as a truly exceptional procedure that should not move beyond the context of end-of-life care. They fail to see this because (1) they gloss over and fail to give due weight to a longstanding human rights tradition respecting the intrinsic value of human life; and (2) do not appreciate how fraught the application of the concept of ‘unbearable suffering’ really is as a matter of policy and practice.In this paper, I discuss these two issues, briefly expanding on what we can learn from the very few jurisdictions that have implemented broad access to PAD. Rather than promoting broader access to PAD on the basis of a theoretical commitment, we should take the compounding impact of organizing a PAD regime around the concept of unbearable suffering much more seriously.